Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil) 2945 of 2008
PETITIONER:
Rajasthan SRTC & Ors
RESPONDENT:
Mohar Singh
DATE OF JUDGMENT: 24/04/2008
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 2945 OF 2008
(Arising out of SLP (C) No.6756 of 2006)
S.B. Sinha, J.
1. Leave granted.
2. First appellant (Corporation) is a statutory corporation constituted and
incorporated under the Road Corporation Act, 1951. Respondent herein was
a driver of a bus employed by the Corporation.
3. On the charges of alleged commission of misconduct on the part of
the respondent, a disciplinary proceeding was initiated against him on or
about 6.11.1982. The Enquiry Officer found him guilty of the said charges.
By reason of an order dated 31.5.1985, the disciplinary authority, upon
considering the report of enquiry officer inflicted the punishment of
dismissal from services on him with immediate effect. It was furthermore
directed that he shall not be entitled to further wages save and except what
has already been paid to him by way of subsistence allowance.
4. An appeal preferred by him was dismissed by the Appellate Authority
by an order dated 16.6.1987.
5. Respondent filed a civil suit in the Court Additional Munsif, Jaipur
which was marked as Civil Suit No.632/88 (290/86). In his written
statement, the appellant, inter alia, contended that the Civil Court had no
jurisdiction to entertain the suit. Some of the issues framed by the Civil
Court were :
"(1) Whether the order of termination No.1516
dated 31.5.1985 and the order of the
Appellate Authority dated 16.6.1987 are
illegal and bad in law?
XXX XXX XX
(3) Whether the Court has got no jurisdiction to
entertain and try the suit?"
6. While determining issue No.1, the Trial Court, inter alia, held that the
order of termination dated 31.5.1985 as also the order of the appellate
authority were illegal, bad in law and against the principles of natural
justice, opining :
i) The documents mentioned in the charge-sheet whereupon the
appellant relied, had not been supplied to the respondent;
ii) He was not permitted to cross-examine the witnesses examined on
behalf of the department; and
iii) The enquiry officer acted like a prosecutor.
7. On the said findings, the suit was decreed, opining :
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
"In the result, it is ordered that the suit of the
plaintiff is decreed against the defendant declaring
that the order No.1516 dated 31.5.1985 passed by
the defendant and the order of the Appellant
Authority dated 16.6.1987 is held to be illegal, bad
in law non est being against principle of natural
justice and, therefore, is set aside. It is also
declared that the plaintiff would be treated to be in
continuous service of the defendant without any
break and would also be entitled to receive all the
monetary benefits as he would have been entitled
has he been in continuous service."
8. An appeal preferred thereagainst by the appellant was dismissed by
the Additional District and Sessions Judge, Jaipur City by a judgment and
order dated 5.5.2000.
The High Court, by reason of the impugned judgment has dismissed
the second appeal filed by the appellant, holding that no substantial question
of law arose for its consideration.
9. Mr. Thanvi, learned counsel appearing on behalf of the appellant,
would submit that the Civil Court, in the facts and circumstances of this
case, had no jurisdiction to entertain the suit.
It was pointed out that as there exists conflict between two three Judge
Bench decisions of this Court in Rajasthan State Roadways Transport
Corporation & Anr. v. Krishna Kant & Ors. [(1995) 5 SCC 75] and
Rajasthan SRTC & Ors. v. Khadarmal [(2006) 1 SCC 59], a Division Bench
of this Court in Civil Appeal No.3428 of 2005 referred the matter to a larger
Bench.
10. Section 9 of the Code of Civil Procedure provides that all Civil Courts
shall have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.
The jurisdiction of the Civil Court apparently is not expressly barred
by the provisions of Industrial Disputes Act, 1947.
The question which arises for our consideration would be as to
whether the same is barred by necessary implication.
11. Civil Court may have a limited jurisdiction in service matters but it
cannot be said to have no jurisdiction at all to entertain a suit. It may not be
entitled to sit in appeal over the order passed in the disciplinary proceedings
or on the quantum of punishment imposed. It may not in a given case direct
reinstatement in service having regard to Section 14(1)(b) of the Specific
Relief Act, 1963 but, it is a trite law that where the right is claimed by the
plaintiff in terms of common law or under a statute other than the one which
created a new right for the first time and when a forum has also been created
for enforcing the said right, the Civil Court shall also have jurisdiction to
entertain a suit where the plaintiff claim benefit of a fundamental right as
adumbrated under Article 14 of the Constitution of India or mandatory
provisions of statute or statutory rules governing the terms and conditions of
service.
12. Under the industrial law, and in particular the 1947 Act, the
authorities specified therein including the Appropriate Governments and the
Industrial Courts have various functions to perform. Terms and conditions
can be laid down thereunder. Violation of the terms and conditions of
service at the hands of the employer is also justiciable. Safeguards have
been provided under the Act to see that services of workmen are not unjustly
terminated. The 1947 Act provides for a wider definition of ’termination of
service’. Conditions precedent for termination of service have been
provided for thereunder.
A decision taken by the Disciplinary Authority under the 1951 Act
ordinarily would be a subject matter of suit. The Civil Court, however, as
noticed hereinbefore exercises a limited jurisdiction. If however, the
concerned employee is a ’workman’ within the meaning of the provisions of
the 1947 Act, he apart from the common law remedies, may take recourse to
the remedies available before an industrial court.
When a right accrues under two statutes vis-‘-vis the common law
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
right, the concerned employee will have an option to chose his forum.
13. We must also notice the distinction between a right which is conferred
upon an employer under a statute for the first time and also providing for a
remedy and the one which is created to determine the cases under the
common law right. Only in a case of the former, the Civil Court’s
jurisdiction may be held to be barred by necessary implication.
The question came up for consideration before a Three Judge Bench
of this Court in The Premier Automobiles Ltd. v. Kamlakar Shantaram
Wadke & Ors. [AIR 1975 SC 2238]. The distinction as noticed
hereinbefore, was noticed therein. The Court extensively quoted from
Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CB (NS)
336] as under :
"There are three classes of cases in which a
liability may be established by statute. There is
that class where there is a liability existing at
common law, and which is only re-enacted by the
statute with a special form of remedy; there, unless
the statute contains words necessarily excluding
the common law remedy, the plaintiff has his
election of proceeding either under the statute or at
common law. Then there is a second class, which
consists of those cases in which a statute has
created a liability, but has given no special remedy
for it; there the party may adopt an action of debt
or other remedy at common law to enforce it. The
third class is where the statute creates a liability
not existing at common law, and gives also a
particular remedy for enforcing it\005.. "With
respect to that class it has always been held, that
the party must adopt the form of remedy given by
the statute."
Having analysed the other ratio of decisions, it was summed up :
"To sum up, the principles applicable to the
jurisdiction of the Civil Court in relation to an
industrial dispute may be stated thus :
(1) If the dispute is not an industrial dispute, nor
does it relate to enforcement of any other
right under the Act and the remedy lies only
in the civil Court.
(2) If the dispute is an industrial dispute arising
out of a right or liability under the general or
common law and not under the Act, the
jurisdiction of the civil Court is alternative
leaving it to the election of the suitor
concerned to choose his remedy for the
relief which is competent to be granted in a
particular remedy.
(3) If the industrial dispute relates to the
enforcement of a right or an obligation
created under the Act, then the only remedy
available to the suitor is to get an
adjudication under the Act.
(4) If the right which is sought to be enforced is
a right created under the Act such as Chapter
VA then the remedy for its enforcement is
either Section 33C or the raising of an
industrial dispute, as the case may be."
14. The said principle, in our opinion, should be applied in a case of this
nature. The Courts ordinarily do not adopt an interpretation which takes
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
away the jurisdiction of the Court.
15. We may in this behalf profitably notice the following excerpts from
the Principles of Statutory Interpretation (11th Edn) by Justice G.P. Singh :
" ’It is a principle by no means to be whittled
down’ and has been referred to as a "fundamental
rule". As a necessary corollary of this rule
provisions excluding jurisdiction of civil courts
and provisions conferring jurisdiction on
authorities and tribunals other than civil courts are
strictly construed. The existence of jurisdiction in
civil courts to decide questions of civil nature
being the general rule and exclusion being an
exception, the burden of proof to show that
jurisdiction is excluded in any particular case is on
the party raising such a contention. The rule that
the exclusion of jurisdiction of civil court is not to
be readily inferred is based on the theory that civil
courts are courts of general jurisdiction and the
people have a right, unless expressly or impliedly
debarred to insist for free access to the courts of
general jurisdiction of the State. Indeed, the
principle is not limited to civil courts alone, but
applies to all courts of general jurisdiction
including criminal courts. The rule as stated above
relating to strict construction of provisions
excluding jurisdiction of courts of general
jurisdiction was recently expressly approved by the
Supreme Court."
16. In Krishna Kant (supra), this Court opined that where a dispute
involves recognition of servant and enforcement of rights and obligations
created under the Industrial Disputes Act and/or its sister enactments such as
Industrial Employees (Standing Orders) Act, the Civil Court will have no
jurisdiction.
Premier Automobiles (supra) was explained, stating :
"25. It is the Principle No. 2, and particularly the
qualifying statements in para 24, that has given
rise to good amount of controversy. According to
Principle No. 2, if the dispute is an industrial
dispute arising out of a right or liability under the
general or common law and not under the
Industrial Disputes Act, the jurisdiction of the civil
court is alternative and it is left to the person
concerned either to approach the civil court or to
have recourse to the machinery provided by
Industrial Disputes Act. But Principle No. 2 does
not stand alone; it is qualified by para 24. Now
what does para 24 say? It says (i) in view of the
definition of "industrial dispute" in the Industrial
Disputes Act, there will hardly be an industrial
dispute arising exclusively out of a right or liability
under the general or common law. Most of the
industrial disputes will be disputes arising out of a
right or liability under the Act. (ii) Dismissal of an
unsponsored workman is an individual dispute and
not an industrial dispute (unless of course, it is
espoused by the union of workmen or a body of
workmen) but Section 2-A has made it an
industrial dispute. Because of this "civil courts will
have hardly an occasion to deal with the type of
cases falling under Principle No. 2". By and large,
industrial disputes are bound to be covered by
Principle No. 3. (Principle No. 3 says that where
the dispute relates to the enforcement of a right or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
obligation created by the Act, the only remedy
available is to get an adjudication under the Act.)"
However, in that case, this Court declined to set aside the decree
which was the subject matter of the appeals.
17. We are not concerned with such a situation here as the same is not
being claimed by the plaintiff on the basis of right arising either under the
Industrial Disputes Act, 1947 or Industrial Employees (Standing Orders)
Act, 1946.
We may also notice that in Rajasthan State Road Transport
Corporation & Ors. v. Zakir Hussain [(2005) 7 SCC 447], whereupon the
learned counsel also replied on, this Court noticed Krishna Kant (Supra), but
in paragraph 32 of the judgment having regard to object of the Industrial
Disputes Act held that the termination of the workman concerned was a
simpliciter one and did not contain any stigma and, thus, the law does not
require holding of any enquiry before terminating the services of the
employee being not on the ground of any misconduct.
It was held that the Civil Court has no jurisdiction as the Management
was fully entitled to terminate the services of the probationary officer during
the period of probation, if his services were not found to be satisfactory.
18. However, this Court in State of U.P. v. Shatrughan Lal & Anr. [AIR
1998 SC 3038], opined that where copies of the statement of the witnesses
were not supplied to the delinquent employee, the same would constitute
violation of the principles of natural justice, stating :
"It has also been found that during the course of
the preliminary enquiry, a number of witnesses
were examined against the respondent in his
absence, and rightly so, as the delinquents are not
associated in the preliminary enquiry, and
thereafter the charge-sheet was drawn up. The
copies of those statements, though asked for by the
respondent, were not supplied to him. Since there
was a failure on the part of the appellant in this
regard too, the Tribunal was justified in coming to
the conclusion that the principles of natural justice
were violated and the respondent was not afforded
an effective opportunity of hearing, particularly as
the appellant failed to establish that non-supply of
the copies of statements recorded during
preliminary enquiry had not caused any prejudice
to the respondent in defending himself."
19. In Khadarmal (supra), it was held that the Civil Court had no
jurisdiction and the decrees which were passed have no force of law.
Apparently, this Court in CA No.3428 of 2005 (supra) found an apparent
conflict in the said decision vis-‘-vis Krishna Kant (supra) and Khadarmal
(supra).
In Khadarmal (supra) also, however, this Court directed that if any
back wages had been paid, the same shall not be recovered.
20. The decisions referred to hereinbefore clearly brings about a
distinction which cannot be lost sight of. If a right is claimed under the
Industrial Disputes Act or the sister laws, the jurisdiction of the Civil Court
would be barred, but if no such right is claimed, civil court will have
jurisdiction.
21. Appellant is a ’State’ within the meaning of Article 12 of the
Constitution of India. It is created under a statute. As a State, it is bound to
comply with the requirements of Article 14 of the Constitution of India as
also other provisions of Part III of the Constitution. It is also bound to
comply with the mandatory provisions of the statute or the regulations
framed by it.
22. It is also bound to follow the principles of natural justice. In the
event, it is found that the action on the part of a State is violative of the
Constitutional Provisions or the mandatory requirements of a statute or
statutory rules, the Civil Court would have the jurisdiction to direct
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
reinstatement with full back wages.
23. In Praga Tools Corporation v. C.V. Imanual & Ors. [AIR 1969 SC
1306], it was held :
"Therefore, the condition precedent for the issue of
mandamus is that there is in one claiming it a legal
right to the performance of a legal duty by one
against whom it is sought. An order of mandamus
is, in form, a command directed to a person,
corporation or an inferior tribunal requiring him or
them to do a particular thing therein specified
which appertains to his or their office and is in the
nature of a public duty. It is, however, not
necessary that the person or the authority on whom
the statutory duty is imposed need be a public
official or an official body. A mandamus can
issue, for instance, to an official of a society to
compel him to carry out the terms of the statute
under or by which the society is constituted or
governed and also to companies or corporations to
carry out duties placed on them by the statutes
authorizing their undertakings. A mandamus
would also lie against a company constituted by a
statute for the purposes of fulfilling public
responsibilities."
24. For the reasons aforementioned, we do not find any merit in this
appeal. It is dismissed accordingly. As the respondent has not appeared,
there shall be no orders as to costs.